Society, State and Nation-State

1 State and Society

2 Nationalism and Nation-State

3 Civil Society

-

State

Though politics is not defined entirely in terms of the state in modern times, the state continues to be the central concept in politics. It is a universal and powerful social institution. Voluntary cooperation as the means of societal control was in adequate when the complexity of life increased. Not all matters could be left to social management. The use of coercive force became necessary to enforce full obedience to at least some definite laws. Social sanctions were sufficient as long as a hierarchy was recognized and accepted in a tribe or a clan. Therefore large human communities had to be governed either by brute force or by establishing authority that is more or less accepted. Kinship bonds, religion, economic power, force, consent and other instrumentalities that came handy were used to evolve an authority that could demand and obtain obedience from the people. Thus society was politically organized and was vested with a monopoly of final coercive power and state emerged.

State fulfilled mainly a single purpose, namely the enforcement of the law. The area of state action is thus limited. State served the individual mainly in respect of providing security of person and property. The state provided the atmosphere within which all other social institutions and agencies functioned peacefully. In its narrow sphere the state was supreme though society which was pluralistic had wider sphere of activities.

Definitions:

Definitions of state varied according to the functions fulfilled by the state at various times.

For the Greeks there was no distinction between state and society. Aristotle defined state as “a union of families and villages, having for its end, a perfect and self-sufficing life, by which we mean, a happy and honourable life.”

The Roman jurist Cicero defined state as “a numerous society, united by a common sense of right and a mutual participation in advantages.”

The concept of state is comparatively modern and owes its origin to Machiavelli who expressed this idea as the power which has authority over men.

According to Bodin, “The state is an association of families and their common possessions governed by the supreme power and by reason.”

Harold Laski defined the state identifying its essential elements. According to him, “the state is a territorial society, divided into government and subjects claiming within its allotted physical area, a supremacy over all other institutions.”

Garner has defined the state as, “a community of person, more or less numerous, permanently occupying a definite portion of territory, independent or nearly so of external control and possessing an organized government to which the great body of inhabitants render habitual obedience.”

Max Weber sought to evolve a sociological definition of state. According to him state is a human community that claims the monopoly of the legitimate use of physical force within a given territory.

Essential elements of state:

In the light of the various definitions of the state, it is customary to identify the state by its constituent elements which include: Population, Territory, Government and Sovereignty.

1) Population:

The state is a human institution. The population is, therefore, an essential element of the state. However, the population can constitute a state only when it is united by the conditions of interdependence, consciousness of common interest and general regard for a set of common rules of behaviour and institutions.

The size of population of a state cannot be fixed and there is no unanimity of opinion in this regard. Plato considered that an ideal state should have a population of 5040. Aristotle believed that the population of a state should be large enough to be self-sufficing and small enough to be well-governed. For Rousseau 1000 was the ideal figure for a state. However these traditional view do not hold good in the context of modern states. As there big states like Russia and India and there are small states like Monaco and San Marino.

In addition to the size of the population the quality of the population inhabiting the state is also equally important. Aristotle maintained that a good citizen makes a good state and a bad citizen makes a bad state.

The population of a state need not belong to a single race, religion, language or culture. A homogeneous population is no longer considered as essential feature of the modern state. The modern state claims to reconcile the interests of various groups of its citizens.

2) Territory:

Territory is another important element of a state. Other associations either exist within states or they extend their sphere to several states; they do not need separate territory. But the state must possess a territory where its authority is accepted without dispute or challenge.

A state comes into existence only when its population is settled in a fixed territory. Friedrich Engels, in his Origin of the Family, Private Property and the state (1884), notes that the formation of the state is accompanied by a division of population according to territory. The territory of the state includes land, water and air-space within its boundary. It also extends to a distance of 3 miles into the sea form its coast, and is known as territorial waters.

Territory symbolizes the sphere of sovereignty of the state. Territory provides for a sense of security and immense opportunities for a fuller life for its residents. It is an object of sentimental attachment- people love and worship their motherland and ready to make ant sacrifices for tis protection.

3) Government:

Government is another essential element of the state. According to J W Garner (Political Science Government:1928), ‘government is the agency or machinery through which common policies are determined and by which common affairs are regulated and common interests promoted.’ If the state represents an abstract concept, government is its concrete form.

In other words, authority of the state is exercised by government; functions of the state are performed by the government.  Government functions through its core three braches i.e. Legislature, executive and Judiciary. Laws of the state are made, declared and enforced by government. Government is responsible for the maintenance of law and order and for the provision of common services- defence, roads, bridges, communication, health and education etc. without government, the people are a chaotic mass of disjointed particles, without common aims, common interests or a common organization. However, government and state should not be treated as co-terminous. Government may rise or fall without disturbing the identity of the state. 

4) Sovereignty:

Sovereignty denotes the supreme or ultimate power of the state to make laws or to take political decisions- establishing public goals, fixing priorities and resolving conflicts- as also enforcing such laws and decisions by the use of legitimate force. In fact, sovereignty denotes the final authority of the state over its population and its territory. This authority may be exercised by the government of the day, but it essentially belongs to the state from which it is derived by the government.

It is by virtue of its sovereignty that a state declares-through the agency of the government- its laws and decisions and issues commands which are binding on all citizens, claims obedience thereto, and punishes the offenders. This aspect of sovereignty is called as internal sovereignty. It means that the state is supreme in all its internal matters. It exercises supremacy over all the institutions and people of the state.

On the other hand state is also independent in the international sphere while maintaining diplomatic and international relations with other states. It cannot be forced or controlled by any other state in its external affairs. This aspect of sovereignty is known as external sovereignty.

A state continues to exist as long as it is armed with sovereignty. If a state loses its sovereignty because of internal revolt or external aggression, the result is anarchy and disappearance of the state as such. Some writers regard international recognition as an essential element of the state. This denotes formal recognition of the sovereignty of the state over a given territory and population by other states

Nature of the state:

The state possesses the power to enforce its norms on all those who live within its boundaries. These norms are the law. Membership of the state is compulsory. While other associations are voluntary in various degrees, an individual cannot exempt himself from the membership of a state and conformity to its laws. Legally, an individual has no choice but to obey the laws of the state. The state is truly an instrument to regulate human life.

The power of the state is not exerted by sheer arbitrary force. It is used to achieve certain ends. These ends give validity to the laws or contribute to their acceptance by the large body of inhabitants. This makes it easy for the state to enforce its will. The state is not purely a legal order. It has also a philosophical basis to justify itself.

The authority of the state rests on the ability of the state to satisfy the demands made on it by its people. The people may desire security of person and property, freedom to worship in particular ways, some rights such as freedom of expression and in general the freedom to pursue happiness as they conceive it.  If a state is proved incapable of satisfying these demands it loses its credibility.

Laws of a state are the response to the effective demands on the state, the needs of those who have the means and will to take their demands to the center of political power. The state always contracts a large number of competing demands and is therefore under pressure to choose some and drop others while translating them into policy decisions.

State and Society (Comparative Analysis):

Society is defined as a “Collection of individuals held together by certain enduring relationships in pursuance of common ends.” On the other hand, the state is defined as, “a particular portion of society politically organized for the protection and promotion of its common interests.” The state is necessarily a political organization but society is not.

Society regulates all forms of social conduct but state can regulate only the external relationships of the people.

The state derives its strength mainly from law but society from traditions, customs and conventions.

The state possesses the power of coercion. If a person violates the law the state, he is punished according to law. However, society does not enjoy the power of coercion. There may be no physical punishment even if the rules of society are violated. The only basis of the authority of society is social customs, conventions and morality. The weapon use by the society is persuasion and coercion. 

The state is a territorial organization. Its territory is well defined. However society is not limited to any geographical area. The Jews, the Christians the Muslims and the Hindus are spread all over the world. There is no territorial limitation on society. Moreover even within a state, there may different societies.

The membership of a state is compulsory while the membership of a society may be voluntary.

Society has a wider scope than the state. The aim of society is to develop all aspects of human life, but the state is concerned mainly with the political relations of man.

Society came into existence prior to the state. From the very beginning man has lived in society. Society began with the birth of man on earth. Society is instinctive to man because he cannot live in isolation. Aristotle rightly says that man is a social animal by nature and necessity. However, the state is the creation of will and reason. It is man’s political consciousness which brought the state in society.

State is sovereign but the society is not. Without sovereignty, there can be no state. State has the supreme power to command and nobody can challenge its authority. Society does not necessarily possess any sovereign power and cannot punish those who disobey it rules. Society can put only moral pressure.

State controls only the external activities of man whereas society controls both internal and external activities. State has to act through law which can regulate only the external actions of man. It cannot control his thoughts. Society is concerned both with internal and external activities of man.

The rules and laws of the state are clear and definite as those are enacted by the legislature, but the rules and principles of society are based on customs, traditions and conventions of the people and hence are not clear and definite.

Thus although both the terms are different from each other they are connected and inter-dependent. Social conduct must conform to the way of life prescribed by the laws of the state, but the state must not trespass into the sphere not assigned to it. Barker concludes, “State and Society have the same moral purpose. They blend and borrow from each other.”

Nation

The term nation is derived from the Latin word ‘Natio’ which means birth or race. A nation is a people descended from a common stock. It means a people brought together by the ties of blood relationship.

According to Burgess, a nation is a “Population of an ethnic unity inhabiting a territory of a geographic unity.”

Lord Bryce defines a nation thus: “A nation is a nationality which has organized itself into a political body, either independent or desiring to be independent.” 

The view of Prof. Hayes is that, “a nationality by acquiring unity and sovereign independence becomes a nation.”

Dr. Garner says,” A nation is a culturally homogeneous social group which is at once conscious and tenacious of its unity of psychic life and expression.”

E H Carr says, “the term nation has been used to denote a human group with the following characteristics:

a) the idea of a common government whether as a reality in the present or past, or as inspiration of the future.

b) a certain size and closeness of contact between all its individual members.

c) A more or less defined territory.

d) Certain characteristics (of which the most frequent is language) clearly distinguishing the nation from other nations.

e) Certain interests common to the individual members.

f) A certain degree of common feeling or will, associated with a picture of the nation in the minds of the individual members.”

What makes a group of people a nation is not necessarily a community of race, language or religion, but the sentiment of consciousness or like-mindedness.    

Nationality:

Nationality is a collective name given to that complex of psychological and cultural factors which furnish cohesive principle uniting a nation. Nationality is a sentiment of ‘oneness’ that unites the people of a particular kind and thus differentiates them from others who do not share similar feelings and sentiments.

The word nationality is used in three different senses.

1) It refers to the legal status of citizenship of a particular state. That is nationality of a person refers to his status as a citizen of the country which he belongs to. E.g. Indian, American etc

2) Nationality means a group of people having their distinct identity within a particular nation. E.g. there were many nationalities as Byelorussians, Ukrainians and Uzbeks etc.in the former USSR. In India also Kashmiris are identifying themselves as a separate nationality although they still do not have a separate state of their own.

3) Nationality signifies a particular kind of feeling and sentiments that bind a people and differentiate them from the people of other nationality.

Zimmern writes,

 “Nationality, like religion is subjective, statehood is political;

Nationality is a condition of mind, statehood is a condition in law;

Nationality is a spiritual possession, statehood is an enforceable obligation;

Nationality is a way of feeling, thinking and living, statehood is a condition inseparable from all civilized ways of living.”

Thus the sentiment of nationality makes a nation and the establishment of self-rule by the people of one particular nationality makes their Nation-state

Nationalism:

Nationalism means a special spirit of oneness, or common consciousness or unity among the people founded on political, historical, racial, religious, linguistic, psychological, emotional and other factors in a state.

Nationalism is also defined as, “a force, which holds a community in defined territory together, for the maintenance of its rights against arbitrary powers within the state and preservation of its independence against aggression from without.”

Nationalism implies burning love for one’s own nation or country. People love and worship their nation in the same way as they do in the religious field. The county is always addressed as ‘motherland’. Thus nationalism is idealised and idolised.

Factors promoting and creating Nationalism:

1) Common Residence or Geographical Factors:

Geographical unity or naturally defined territory is one of the most powerful factors that create, promote and sustain national feelings among people inhabiting a common land often described as homeland or motherland. The two wings of Pakistan created in 1947 could not remain together and in 1971, the people of East Pakistan revolted and ultimately the new state of Bangladesh came into existence. The people who inhabit a common territory for a long time naturally cherish common traditions and cultures and start loving their motherland. However centuries ago the Jews ran away from their motherland, Palestine, when they were attacked by the Arabs. They dispersed themselves in various parts of Europe and continued their separate feeling of nationalism. Ultimately they succeeded in having in 1948 a new state of Israel.

2) Common Race:

Common race is also a great unifying force. Blood relationship brings people together. Blood is always thicker than water. People having common ancestors are unconsciously brought together. There is an inner force that unites their hearts. Thus a common race is helpful for the growth of the sentiment of nationalism. However modern nation-states are example of confluence of multiple races e.g. USA, Canada, and Switzerland etc. Experiences show that different nationalities have come into existence in spite of the lack of racial unity.

3) Common Language:

A common language is a great unifying force. The people speaking the same language have more chances of understanding one another and acting together. According to Joseph, a common language enables people to i) project common ideas, ideals, sentiments and feelings, ii) set up common standards of morality, manners and justice, iii) conserve historical traditions and iv) generate a common psychology.

However despite diversity of languages in USA and Canada the national feeling is high in these countries. Whereas diversity of languages ia a major obstacle in generate a unifying Indian Nationalism.

4) Common historical Traditions:

The most significant and indispensible factor that vitalizes national feeling among people is the common historical traditions. In the words of Ramsay Muir it includes, Memory of sufferings endured, Victories won in common, Expressed in songs and legends, National memory enshrined in heroic achievements, agonies historically endured and sentiments attached with sacred places. These all nourish the spirit of nationalism and are the soul of it.

5) Common Political Aspirations:

It also plays a prominent role in promoting the feeling of nationalism. In such a case a common nationality grows in spite of differences of language, caste, creed and culture. The people living under foreign yoke develop a sentiment of nationalism. They come together and organize themselves to fight for their freedom. It was this factor which fostered feeling of nationalism in India, Africa and Asia. National feelings also grew in Germany, Austria-Hungary and Italy against Napoleon.

6) Common Religion:

Religion has played a very important role in creating, promoting and sustaining national spirit. During, middle ages crusade have been fought between Christians and Muslims. Among the Jews, the Japanese, The Poles and the Irish religion has been the mainspring of their national life. The demand for Pakistan was based on the two nation theory rooted in two different religions. However, most modern states today tolerate all religions because faith has today become a personal affair.

Nation-State:

The theory of “One Nation, One State” became popular after the World War I and many new states were created on the principle of self-determination. The term nation and state began to be used as synonymous. It is desirable that we should not identify nation with the state as the two terms are distinct.

The essential elements of the state are population, territory, government and sovereignty. Wherever these are present, there is a state. It is not necessary that the people living within the state must have a feeling of oneness. On the contrary the term nation refers to a feeling of unity among the people. It is necessary for a state to be independent. There can be no state without sovereignty. In case of a nation, it is not essential that the people concerned must be independent. It is enough if they are determined to have an independent state of their own in future.

The modern state usually takes the form of a nation-state. The frontiers of the state are called national frontiers; the interest of the state is described as national interest. Relations between different states are known as international relations. A nation-state grows on a  much wider base. It refers to people living in a defined territory, inspired by a sense of unity, common political aspirations, common interests, common history and common destiny. People of different races, with different religions, languages and cultures, etc. may live together and feel united as citizens of the same state, owing their undivided allegiance to the state.  Thus, nationhood transcends the conditions of birth and extends to the permanent residents of a state. Members of a nation of course distinguish themselves from other nations. They may sometimes be prejudiced against other peoples. Yet a logical outcome of the idea of a nation postulates equality among nations, their co-existence and cooperation.

Principle of National Self-determination:

Since 1920, the principle of national self-determination has been almost universally accepted which has led to the establishment of nation-states and rapid development of international law to regulate relations between nation-states. National self-determination is the principle that each nation has the right to be independent and to choose a suitable form of government for itself. The congress of Vienna (1815) after the battle of waterloo gave recognition to this principle for the first time.

At the end of the First World War (1914-18), Woodrow Wilson conceived of it primarily as a criterion for the break-up of the empires defeated in the war, i.e. Austro-Hungarian, German and Ottoman empires which redrew the map of Europe. In Wilson’s view, “Self-determination is not a mere phrase; it is an imperative principle of action, which statesmen will, henceforth, ignore at their peril.” Lord Bryce and J S Mill are also some other exponents of the same principle. Around this time, V I Lenin conceived of this principle essentially as the ground for granting independence to the dependent nations from colonial and imperial domination. After the Second World War (1939-45), the United Nations upheld this principle through various international documents. Thus many nations emerged in Asia, Africa and Latin America. However they are faced today with the gigantic task of nation-building. Most of them evolved a national sentiment during their struggle for independence, but disruptive tendencies started to emerge after they achieved their independence.

Civil Society:

In contemporary discourse, the term ‘civil society’ is used in two senses. In one sense, civil society comprises the social institutions like school, church and peer groups of citizens which serve as structures of legitimation of the state. These institutions largely lend support to the state. This view of civil society corresponds to Gramsci’s view of its role in sustaining the capitalist system.

In the second sense, civil society stands for a set of public interest organisations set up by some conscious citizens which make various demands on the state or launch social movements to mobilise ordinary citizens on the way to social reform. The state must respond promptly to their demands in order to ensure smooth functioning of society. The role of civil society in this sense has assumed special significance in recent years.

Present day concept of civil society closely corresponds to Tocqueville’s view on the role of ‘intermediate voluntary associations’. With the emergence of democracy, old centers of power were destroyed. Power was now concentrated in the hands of majority. This led to the danger of tyranny of majority. In order to protect the freedom of citizens, Tocqueville suggested a vigorous system of voluntary associations could act as counterweights to the state power. They could crystalise and publicise opinions and interests which would otherwise go unheard. Moreover, these associations could stimulate collective self-help rather than reliance on state initiative. They could draw people into cooperative ventures, breaking down their social isolation and making them aware of their wider social responsibility. They could function as ‘schools of democracy’, instilling habits of civic virtue and public spirit into their members. In short, these associations would serve as an effective instrument of defence of individual liberty and close cooperation between the citizens to solve their common problems. Tocqueville was an ardent champion of freedom of association.

Civil Society is now regarded as an important organ of democratic society. It includes a wide range of associations and social movements which provide ample opportunities to the citizens to develop their capacities and express their varying interest and diverse identities. It creates an atmosphere where the citizens are able to enjoy some level of autonomy or independence from government control or influence. It promotes a moral sense of obligation among the citizens and motivates them to participate in civic causes. It discourages their dependence on the government for the solution of their common problems. Thus t serves as the true sense of democratization.

In recent political discourse, the concept of civil society has been further refines. Jean L Cohen and Andrew Arato, in their essay civil society and political theory(1992), have defined civil society as an area of public activity distinct from both the state and the market. Paul Hirst, a British academic, has visualized civil society as a set of voluntary associations which would be the primary base of democracy. He has evolved a model of democracy in which self-governing associations would perform public functions. Robert Putnam, an American Social scientist, has suggested that the associations of civil society can create ‘social capital’ i.e. a set of social practices which involve civic engagement and ideas of reciprocity.

It is now increasingly realized that the civil society can prove to be an effective instrument to counter the citizens’ indifference toward their civic duties. Today the people seldom participate in political discussion; they are hardly interested in criticism of the government. Under the circumstances, civil society movement can motivate them to take active interest in public affairs and freely articulate their opinions. This will strengthen democracy. It would prove to be an effective instrument of removing economic inequalities and securing social justice.

Political Theory(FYBA):Rights

A right means a legal claim, or a privilege, of an individual or of a person to do or not to do something or to have or not to have something, to which the individual, or the person is legally entitled to.

A right is a claim of an individual recognized by the society and the state. A proper definition of the term ‘right’ has three ingredients.

First, it is a claim of the individual. However not every claim can become a right. It is required that the claim should be like a disinterested desire or something which is capable of universal application. The guiding factor is that what an individual wills should be of common interest. That is, in asserting a claim one should feel like rendering a public service.

Second, the claim of the individual should receive recognition by the community. Since individual’s claim is backed by a disinterested desire, it involves the good of all and, as such it receives social recognition. Every right should receive social recognition. Without such recognition, rights are empty claims. Rights do not exist in vacuum, so to speak. They require the sanction of society. 

            For instance, an individual’s claim that none should take his life receives social recognition as every individual wills in the same direction. A recognition of the claim of this type ultimately leads to the creation of right to life. Claims thus recognized are translated into rights, and it is such recognition that constitutes them rights.

Finally, political recognition. Rights are just like moral declarations unless they are protected by the state. Naturally there must be some coercive force to ensure the exercise of these rights.  The state translates the socially recognized claims or moral rights into terms of law and thereby accords them legal recognition. The state acts like a coercive agency to prevent the operation of the selfish wills of the individuals.

Rights, therefore have a three-fold character. They are ethical when we deal with claims of the individuals based on their real wills and therefore recognized by the community. They are legal; when translated into law by the state. In the sphere of politics, we are concerned with ‘moral rights’ which would be legally enforceable if law were what it ought to be.

A proper definition of the term ‘right’ should, therefore involve all the three ingredients. However, the most important ingredient, in the realm of political theory, is the fact of political recognition that connects the element of disinterested claims of the individuals with the sovereign authority of the state. 

However, one point relating to the development of the concept of rights in recent times is that the ‘claim aspect’ has overshadowed the ‘duty aspect’ of this term. Rights and duties are correlative conceptions; that is to say, every right carries with it a corresponding obligation. They are like the two sides of the same coin. Rights depend upon duties. It is only in a world of duties that rights have significance.

According to Laski: “Rights are those conditions of social life without which no man can seek, in general, to be himself at his best.” 

A right is essentially an entitlement or a justified claim. It denotes what we are entitled to as citizens, as individuals and as human beings. It is something that we consider to be due to us; something that the rest of society must recognize as being a legitimate claims that must be upheld.

Grounds on which rights have been claimed:

Rights are primarily those claims that I along with others regards to be necessary for leading a life of respect and dignity.

1.      They represent conditions that we collectively see as a source of self-respect and dignity.

For example, the right to livelihood may be considered necessary for leading a life of dignity. Being gainfully employed gives a person economic independence and thus is central to his/her dignity. Having our basic needs met gives us freedom to pursue our talents and interests. 

Or, take the right to express ourselves freely. This right gives us the opportunity to be creative and original, whether it be in writing, or dance, or music, or any other creative activity. But freedom of expression is also important for democratic government since it allows for the free expression of beliefs and opinions. Rights such as the right to a livelihood, or freedom of expression, would be important for all human beings who live in society and they are described as universal in nature.

2.      Another ground on which rights have been claimed is that they are necessary for our well-being. They help individuals to develop their talents and skills. A right like the right to education, for instance, helps to develop our capacity to reason, gives us useful skills and enables us to make informed choices in life. It is in this sense that education can be designated as a universal right.

3.      However, if an activity is injurious to our health and well-being it cannot be claimed as a right.

For instance, since medical research has shown that prohibited drugs are injurious to one’s health and since they affect our relations with others, we cannot insist that we have a right to inhale or inject drugs or smoke tobacco.

Theories of rights:

Natural Theory:

It is the earliest theory of rights. It holds that rights belong to man by nature. They inhere in him. They are self evident truths. One simply asserts them dogmatically. Rights are absolute. They are pre-civil and, according to some, even pre-social. They are inborn. They can be asserted anywhere and everywhere. The nature is the author of certain rights that have a universal, rational, eternal and immutable character. 

            The origin of the natural theory of rights goes back to ancient Greece when, the Stoics preached the doctrine of natural equality of mankind. 

            In Roman age, Polybius and Cicero drew inspiration from the creed of Stoicism and held that civil law should confirm to the dictate of the law of nature that was universal, eternal, rational and immutable.

            During the middle ages, it was given a Biblical complexion so that the law of nature became the law of God, whereby instead of nature of God became the author of man’s rights.

However, the exposition of this idea took a very prominent shape in the seventeenth century when social contractualists like Spinoza, Hobbes and Locke accepted this version so as to establish a proper relationship between the liberty of the individual and the authority of the state. 

They contemplated the existence of rights in a hypothetical ‘state of nature’ and termed them ‘natural rights.’ They sought to establish that the individuals had certain rights even before the state came into being as a result of some social compact. Thus, essential rights of the individuals have a ‘pre-political’ character, while Hobbes treated them as ‘pre-social’ as well. Besides, he identified his theory of rights with his well- known doctrine of power. He insisted that every man had the ‘right to self-preservation’ that could not be taken away even by the sovereign rather, the individuals were justified in violating the terms of the compact in case the government were determined to take away the life of the subjects.

The most outstanding place, in this direction, is occupied by John Locke who includes three rights (relating to life, liberty and property) in his catalogue of natural rights. To him the main function of the state is to protect these natural rights of the individuals. The individuals have every right to resist, even over throw, the government in case the rulers violate the sanctity of the natural rights. These rights cannot be surrendered to any alien authority (even to state or government) and if ever an agreement to this effect is made under pressure or through some miscalculation, the very agreement becomes void. 

In this way, the rights are an integral part of human personality and if the government ever seeks to encroach upon them, it will entitle the people to rise in revolt for the sake of preserving their natural rights.

The trend continued in the eighteenth century and some of the important political documents found their basis in the theory of natural rights.

• The Constitution of Virginia declared: “That all men are by nature free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact derive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, with the means of acquiring safety.”

• The American Declaration of Independence of 1776 reiterated that, “all men are endowed by their Creator with certain unalienable rights.’

• Likewise, the French Declaration of the Rights of man and citizen of 1791 took it as self-evident truth that ‘men are born free and live free and equal in their rights.’

• To refer to the latest instance, we may invoke the Universal declaration of Human Rights of 1948 which says: “All human beings are born free and equal in dignity and rights.”

However, to make this point clearer, it may be added that in the 17^th and 18^th centuries, inalienable rights would have been appropriately described as moral rather than institutional or legal; politically basic rather than derived; natural rather than fortuitious, conventional, or supernatural: and self evident rather than inferred.

In fine the whole idea of natural rights is based on the assumption that irrespective of his merit as an individual in his personal or moral capacity, man is at least equal to all others in human worth.

Legal Theory:

The theory of natural rights holds that all rights of man depend on the state for their existence. There can be no right in the proper sense of the term unless it is so recognized by the state. According to this theory, no rights are absolute, nor are any rights inherent in the nature of man as such. Rights are relative to the law of the land; hence they are vary with time and space. Rights have no substance until they are guaranteed by the state. Obviously, such an affirmation regards rights as the creation of the political community. My right to life, liberty, property, etc… is determined by the state. Rights are artificial. 

            This implies: a) in the first place, that there are no rights prior to the state, because they come into existence with the state itself; b) secondly, it is the state which declares the law and thereby guarantees and enforces rights- no rights can exist beyond the legal framework provided by the state; and c)finally, as the law may change from time to time, the substance of rights also changes therewith- there can be no ‘fixed’ rights in any society, not to speak of eternal or universal rights.

            We find a trace of this theory in Thomas Hobbes, who holds that the only fundamental right of every individual is that of ‘self-preservation.’ This right, Hobbes believes, can be better maintained by the state than by the individual. Hence man must depend on the state for the maintenance of his rights. He is free to do anything which is not restrained by the state. In other words, man can have no rights against the state. 

            The positive theory of rights, as it is also called, finds its clear exposition in the works of Jeremy Bentham who decries natural rights as ‘ rhetorical nonsense’ (he rejects the doctrine of natural rights as unreal and ill-founded) and insists that rights are the creature of law and of organized society; at the same time, they arise out of and correspond to a principal of utility.

            It is thus evident that the theory of legal rights was advanced with a focus on political reality and to repudiate the imaginative character of natural rights theory.

The legal theory of rights implying ‘there is no right where there is no power to secure the object of right’ and the power arising from the ‘exercise of a coercive sanction to enforcer the correlative duty suffers from certain weaknesses.

Idealistic Theory: Emphasis on External Conditions as Essential to Man’s Moral development

The idealistic or personality theory defines a right as that ‘which is really necessary to the maintenance of material conditions essential to the existence and perfection of human personality. The supreme right of every man is the right of personality. By this we mean that it is the right and duty of every human being freely to develop his full potentiality. Every other right is derived from this one fundamental right. Even such important rights as the right to life, the right to liberty, the right to property, etc. are not absolute rights. They are conditional or presumptive. They are relative to the right of personality. Thus, I have a right to life only to the extent to which it is necessary for my highest development. 

Green speaks of rights as powers ‘necessary to the fulfillment of man’s vocation as a moral being’.

            This theory looks at rights from a highly moral point of view. Rights are rooted in the mind of man; they are powers granted to him by the community in order that he with others may realize a common good of which his good is an intrinsic part.

 A right must establish two things-  the individual claiming it must be able to convince society that in doing so he is not interfering with the like claims of his fellow beings, and

·      that he must be able to convince society that his claim is absolutely necessary for his self-development.

Thus, a right “is a freedom of action possessed by a man by virtue of his occupying a certain place and fulfilling a certain function in a social order.”

Criticism:

·         The idealistic interpretation is too abstract to be easily understood by an average man and moreover difficulty may arise when we begin to reduce the conception of moral recognition into practical terms. 

·         Since the very idea of personality is a subjective affair, no generally acceptable list of rights can be drawn on the basis of this theory.

·         Moreover, this theory seems to sacrifice social goods for the sake of individual good.

However, the merit of this theory lies on the theoretical plane where we find that it furnishes a safe test to rights which can be applied at all times, and herein it is superior to the legal, historical and social welfare theories. The one absolute right of all human beings is the right of personality.

Historical Theory of Rights:

Historical theory of rights holds that rights are product of a long historical process. They differ from state to state and from time to time because of the different levels of historical development of society. Rights grow out of custom which stabilized through usage in several generations.

            This theory originated in 18^th century conservative political thought. Its upholders defended evolutionary change and deprecated revolution. At best, they supported a revolution inspired by the established order of society. Edmund Burke (1729-97), the greatest champion of historical theory of rights, criticized the French Revolution (1789) for it was provoked by a conception of abstract rights of man- liberty, equality, fraternity. On the contrary, he glorified the English Revolution (1688) which sought to reassert the customary rights that Englishmen had enjoyed from very early days and which had found expression in such documents as the Magna Carta (1215), the Petition of Right (1628), etc. The advocates of Historical Theory of Rights eulogize the Constitutional history of England as the story of the evolution of rights through a long historical process.

Social Welfare Theory of Rights (Emphasis on Rights as Conditions of Social Expediency):

Social-welfare theory of rights postulates that rights are creations of society and are in essence conditions of social welfare. The state should set aside all other considerations and recognize only such rights as are designed to promote social welfare. Rights make what is conductive to the greatest good of the greatest number; they are the conditions of social good. Thus, claims not in confirmation with the general welfare would not be recognized by the society and thus fail from being rights.

            It has the best manifestation in the works of Bentham who led Utilitarian school of the nineteenth century, postulated the ‘greatest happiness of the greatest number’ as the sole criterion of legislation and recognition of rights. Among the contemporary advocates of social-welfare theory, Roscoe Pound (1870-1964) and Zechariah Chafee (1885-1957) are the most outstanding. Chafee holds that law, custom, natural rights, etc. should all yield to what is socially useful or socially expedient. Rights should determined by the ‘balance of interests’ under the prevailing social conditions.

            Social-welfare theory seems to be quite reasonable because no theory of rights can be held valid until it serves the cause of social justice. This theory eliminates the subjective, ambiguous, dogmatic and static criteria. But, again, this theory presents practical difficulties. The question is- who will define social welfare or social expediency?

            At best, social-welfare theory of rights is a relative theory and its merit is dependent on the condition that the oppressed sections have a due share in power and get the opportunity to define social welfare for determining the scheme of rights in a given society.

            Social-welfare theory of rights found a reasoned and elaborate expression in social-democratic perspective on rights.

 

Nature of rights:

Human rights can be exercised, protected, as well as violated only in the society of human beings.

1   Rights are Social in origin.

Rights can be enjoyed only in the society, as rights are the result of the social nature of man. Rights are those claims which are socially recognized in order to make a life richer, fuller, happier, peaceful, and prosperous.

According to Dr. Benni Prasad, “Rights are nothing more and nothing less than those social conditions, which are necessary or favourable to the development of personality. Rights are in their essence, aspects of social life.” These favourable social conditions are guaranteed by a politically organized society. 

Hence, Prof. Laski writes, Rights are those conditions of social life without which no man can seek, in general, to be himself at his best self.”

Rights are meant to enhance dignity and personality of the individual as a member of a society. Therefore a right is claimed by an individual only as member of the society and not as an isolated individual. 

            A right signifies a claim or a power to have something or to do something or to acquire something that is deemed necessary for a man to live like human beings and as a member of society and therefore they are known as human rights.

2.Rights are expressions of human liberty:

Rights are expressions of human liberties in concrete propositions that can be realized in an organized society through the political processes. They are the determinants of the relationship between the individual and the state in a political system.

On the one hand Rights demarcate the area in which an individual is more or less autonomous in what he wants to do and on the other they restrict the area of the state authority. Therefore there can be no liberty without rights. 

Rights supply the details of liberty and the nature of quantum of liberty will vary from state to state. As Laski has rightly observed that every state is known by the rights it maintains.

The foremost objective of rights is to create the atmosphere of freedom necessary for the development and realization of human personality.

3 Rights are not absolute in nature

Man is born free but his freedom is not limitless. It has been argues that the individuals enjoy rights only as members of a society. There exists no right outside the society. Only social living entails that an individual has some area of freedom left to him. When all the members of the society demand this area of personal freedom it automatically calls for limiting the area of each individual’s freedom. Therefore every right of an individual has to be reasonably restricted in the interest of the rights of others. 

Viewed in this sense, human rights are those limited powers or claims are recognized by the state only to the extent, to which they are essential for the full development and flowering of human personality, without interfering in the similar or identical powers or claims of others in the society. 

The rights are not granted in absolute terms; the welfare of the community is an unalterable goal.

4Rights are not unchangeable.

It is important to understand that rights do not have permanent sanctity. The notion of rights is eternal and universal but the actual rights granted to individuals are not unchangeable. Rights reflect the given social economic and political conditions. The context of time and place are important in deciding the legal sanctions accorded to various rights. What may be considered as a very sacred right today may not remain so tomorrow. As the conditions and situations change significance of rights may also change.

Eg. The Indian Constitution that originally conferred right to property on citizens does not treat as fundamental right any more.

5  Rights are dynamic and not static.

Human rights are not static, they are dynamic in the sense that the dimensions of the human rights go on expanding with the socio-eco-cultural and political developments within the state.

6Rights are organically bound up with duties.

Though the doctrines of natural and of human rights do not specifically mentioned duties, the legal notion of rights emphatically correlates rights with duties. The enjoyment of rights involves fulfillment of certain obligations. Since rights exist and are enjoyed only in the social context it is foremost duty of an individual to respect the rights of others. Also an individual is expected to exercise his rights in such a way that he contributes to social richness and welfare.

Apart from the moral duty of respecting rights of others and contributing to social well being, a citizen is expected to execute a number of positive legal duties towards the state.

  Rights may be injunctions Against, or, Demands on, the State.

Rights may be either in the form of injunctions against the authority of the state from violating the inalienable freedom of the individuals, or, in the nature of demands on the state to provide certain, minimum, positive conditions to capacitate an individual to exercise and enjoy those rights.

The civil and political rights are in the nature of injunctions against the authority of the state; and its agencies; and the economic, social and cultural rights are in the nature of demands on the state.

8 Evolutionary Nature of Human Rights.

9 Rights are Indivisible and inalienable.

Human Rights are indivisible and inalienable and cannot be separated into water tight compartments. It is a false dilemma to separate the political and civil rights from the social and economic rights because we cannot enjoy civil and political rights unless we enjoy economic, cultural and social rights, and vice versa.

A hungry man does not understand the meaning and significance of the right to vote, he is most likely to auction to the highest bidder in the political market to satisfy his cruel hunger.